Take a Knee

As the 2017 football season is getting underway, national headlines are bringing our attention to two unemployed footballers – one a player and one a coach, one from the pros and the other from a prep school.

Both of these men find themselves at the center of controversy for taking a knee. I am referring to Colin Kaepernick and Joseph Kennedy.

Kaepernick is known for taking a knee in a pre-game protest. Kennedy is known for taking a knee in a post-game prayer.

Kaepernick’s story is more well known. After a five-year pro career, he decided to take a knee during the singing of the National Anthem saying, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color.”

After a lackluster season, he did not re-up his contract with the 49ers. Now his supporters are crying out for his First Amendment rights — but nobody has ever denied his First Amendment rights.

 

I am grateful to Mr. Kaepernick for making so many people aware of the First Amendment. Perhaps this renewed emphasis on the US Constitution will help another footballer whose story is less well known.

Joseph Kennedy was hired, in 2008, as an assistant football coach of the High School in Bremerton, Washington. He was reportedly leading their coaches and players in voluntary locker room prayers, in the tradition of Bremerton High School (BHS).

From his first game as coach, he began a custom of kneeling, alone, on the 50-yard line after each game and offering a prayer of thanksgiving to his God. Several games into his first season, some players asked if they could join him. He replied, “This is a free country.”

After seven years, an employee of another school complained. This single complaint from someone completely outside of the Bremerton community led the District Superintendent to issue Kennedy a letter of guidance. Kennedy ceased all communal prayers immediately.

While Kaepernick became controversial by changing his own custom, Kennedy’s troubles were brought on by an external complaint against a long-standing tradition.

Coach Joe Kennedy, Credit: First Liberty Institute

This is the first thing to notice in today’s First Amendment wars: There is a huge bias toward novelty and against long-standing traditions. Novelties like same-sex marriage and genderless bathrooms become the newest sacred cows, while decades-long traditions are tossed away like yesterday’s underwear. This is evidence not of open-mindedness but of revolutionary fervor.

Traditions connect us with our past and serve as time-tested vehicles to inculcate community values. Revolutionaries hate traditions precisely because they work. Revolutionary cries for tolerance and open-mindedness generally precede the most intolerant and closed-minded actions.

Note also the response of the District when the prayers became public. Kennedy returned to his original private prayers without incident, simply waiting until most people left the field before praying.

But then he wrote a letter formally asking for a religious accommodation under the Civil Rights Act of 1964, presumably to clarify the district’s guidance. The school board had assured him he was “free to engage in religious activity, including prayer, so long as it does not interfere with job responsibilities.” But this simple letter made the very act of kneeling into a public scandal.

Like Daniel of old, Kennedy could pray with impunity so long as no one knew. But to pray in the open risked an invitation into the lions’ den (Daniel 6).

In free societies, formal accommodations for religion can meet everyone’s needs, but revolution is hindered by formal agreements. Temporary, unspoken accommodations leave room for evolution.

Photo: BremertonSchools.org

For the Bremerton School District, Kennedy’s public letter was a hostile act. It required a new and sterner edict. For seven years, fans had grown accustomed to seeing players and coaches gather around Kennedy on the 50-yard line. What did the Bremerton administration expect would happen when that practice was suddenly banned?

Did they think the fans wouldn’t notice, or wouldn’t care? Did they expect Kennedy to end that practice overnight without a word to the players, coaches and fans? This is a third problem with revolutionaries: They never seem to anticipate the natural consequences of their revolutionary edicts.

Kennedy tried to be proactive. He informed the administration, the players and the coaches that he was no longer allowed to pray corporately with them, but that he would still pray privately.

But teams and communities have their own ideas as well. The Bremerton school board had forgotten that in a truly free and voluntary community you cannot coerce one citizen without coercing them all.

To forbid a man from group-praying means also to forbid others from grouping around him for prayer. In forbidding free speech to Kennedy, the district simultaneously forbad free association to the coaches, players, students and parents who wanted to join.

This does not sit well with free people. Nor did the fans, coaches and players take this news sitting down. But the district officials could hardly make such a frontal assault on free association. So they simply held Kennedy personally responsible for anyone who prayed with him. This set the stage for the next escalation.

As players and fans talked openly about joining Kennedy as soon as he knelt to pray, the district enforcers worried that they didn’t have the power to stop them. In time, they made yet another new edict.

Presumably for the first time in the history of Bremerton football, parents and fans would be forbidden from coming onto the field after a game. Of course, new rules require new enforcers, and in this case the district enlisted the Bremerton Police Department.

But before this new rule could be handed down, people simply watched and prayed. On October 16, 2015, at the close of the game following his unanswered request for religious accommodation, Kennedy shook hands with the opposing players, waited until most Bremerton players were otherwise engaged, and dropped to a knee to pray. 

Post-game prayer, October 16, 2015, Credit: Lindsey Wasson/The Seattle Times/AP/File

While he was silently praying, “coaches and players from the opposing team, as well as members of the general public and media, spontaneously joined [him] on the field and knelt beside him.” Worse, pictures of this event were published in various media. Apparently, this was too much for the Bremerton School District.

Instead of acknowledging how repeated edicts had escalated the situation, the district blamed Kennedy for engaging “in religious exercise…under the game lights, in BHS-logoed attire.” In only thirty-six days, kneeling on the 50-yard line had gone from a long-standing custom to behavior that may “be perceived as District endorsement [of a religion].”

That’s what the district said in a court of law, and that’s what the Ninth Circuit Court affirmed in denying Kennedy his appeal and his First Amendment rights.

Excuse me, but even from a few states away, I can see that nobody on that field believed they were engaging in some “District endorsed” activity. Rather, it is quite clear that everyone who joined Kennedy in prayer was knowingly thumbing their nose in contempt at the overreaching Bremerton School District.

Next time you hear “the land of the free and the home of the brave,” it would be a good idea to take a knee and pray that Bremerton’s overreaching is overruled. If it’s not, we may soon see the day when no public employee will be permitted to take a knee in prayer.

And maybe for that brief moment immediately following the National Anthem, Kaepernick and Kennedy supporters will all be kneeling together.

(All quotations in this article are from the Ninth Circuit Court's 2-1 August 23, 2017 denial of his appeal.)

Further Reading:
The Federalist: When Kaepernick Took A Knee, He Was Feted. When Joseph Kennedy Took A Knee, He Was Sued.

Christian News Network: High School football coach who lost his job for praying on the field petitions U.S. Supreme Court to hear appeal

What Is true Freedom?

Freedom is the song of the human heart. Our forefathers crossed the sea to find freedom on these shores. They forged the United States constitution to protect this freedom from governmental tyranny. And they shed their blood on every continent to defend human freedom from the armed assaults of evil governments.

From Francis Scott Key’s, “the land of the free,” To Sammy Davis Jr.’s “I’ve Got to Be Me,” to Lady Gaga’s “Born This Way,” freedom’s song still rings out in every generation. That’s the good news.

We still have common ground. We all yearn to be free. We all have the same indominable desire to be the person that we are, to be true to ourselves. This desire for liberty strikes such a deep chord in us that it is unarguable. It is common ground. It binds us together as human beings.

So why is it that this solid common ground does not seem to be holding us together anymore, but tearing us apart? In times past, “Freedom!” was a rallying cry that united us in a common struggle against every oppressor. Today, “Freedom!” is more often a cry that divides us into a million individuals competing against one another for power to make others bend to my will.

In times past, fighting for freedom meant fighting both Nazis and Communists, totalitarians of all sorts who would undermine or destroy the constitution of the United States. Today so-called “freedom-fighters” may openly oppose the constitution and believe that it is a hindrance to their true freedom.

What happened? The answer is fairly straight-forward. While the definition of freedom has remained the same, the definition of who we are, has been turned on its head. Freedom remains the ability to be who I am, to think, speak, and act according to my true humanity. All of us still agree on this. But we have become divided on the more foundational question: What IS my true humanity?

Who ARE you? Who AM I? Are we the same, or are we utterly different? And if we are the same, how are we the same and what unites us?

This is the root problem in public discourse today. Everybody is yelling out “freedom.” Everyone wants to be free to be who you are. But There are two wildly different accountings of who we are.

One accounting says that we are creatures, first and foremost. The Declaration of Independence says, “all men ARE CREATED equal.” Our equality is firmly grounded in a common Creator. “They are endowed by their Creator with certain unalienable Rights.” Human rights are not given by governments, but given by our Creator.

Because there is a common Creator above us all, our individual human rights cannot be in conflict, but must be in perfect harmony with everyone else’s rights. And governments, because they neither created us nor gave us our rights, are duty-bound to recognize and protect the God-given rights of every individual.

This accounting of human nature was the bedrock of our US constitution. It is also found imbedded within the constitution of every state. All fifty states in our union have reference to God or the divine in their constitution.

The other accounting of human nature denies a common Creator. This denial comes in so many shapes and sizes that it is impossible to enumerate them all here. For the moment, it is enough to say that a common Creator is denied – either explicitly or implicitly.

But without a common creator, it is practically impossible to account for human rights. If there is no common Creator above us, are there multiple creators so that we are divided one from another and fundamentally different? Or is there no creator at all, so that each person is his or her own creator?

Either way, rights come into conflict. Interests cannot be harmonized. People are pitted against each other. We are tribalized, or atomized into a million competing individuals with no real hope of harmony. This world-view raises some serious questions both about human rights, and about the nature of government.

If I am not endowed with full human rights by virtue of my conception as a human, just exactly how and when do humans get any rights at all? We see these confusions at work in everything from embryonic ethics to assisted suicide debates. For these unfortunate people, right to life and liberty is not absolute, but depends entirely upon what other people think about them.

If there is not a God who transcends every human being and every human institution, just exactly who are we responsible to? What principle limits government?

America was not born in a vacuum. The founding fathers did not simply assume a Creator because they didn’t have the imagination to think any other way. At the writing of the Declaration of Independence, there were already philosophers and ways of thinking that discounted God, and posited that human beings alone were the source and measure of all things.

Those philosophies led France to a completely different kind of revolution than America experienced. The history of the French Revolution is bloody and hellish. Those who seized power from the crown were not humble and restrained like the authors of the US Constitution.

Heads rolled. A lot of them. The guillotine first killed the royalty. Then, it turned on the people. Without accountability to a Creator, the revolutionary government became a god unto itself.
We saw the same thing happen in Hitler’s Germany with its extermination of 10 million, and in Stalin’s Russia which liquidated 50 million of its own citizens, and in Mao’s China which is still killing and imprisoning its own people, and the list goes on, and on.

Each of these places tried to replace the common Creator with a different basis for unity. Each made the sovereign individual the basis of freedom, and wound up denying rights to millions of those same individuals.

So back to the question at hand. What is true freedom? I am thankful that we have such a solid common-ground. That we all want to be free to live true to ourselves, provides us with a huge potential for unity around this idea.

But whether or not we achieve that unity, depends entirely upon how we answer the prior question: Who are we?

Are we fundamentally creatures, accountable to a Creator? If so, the path to true freedom lies in knowing who I am through His eyes, through His revelation. And seeing myself through God’s eyes, I can have every confidence that my freedom serves my neighbor and does not impinge on the freedoms of those created by the same God.

But if we are fundamentally independent and sovereign beings, with no Creator, we have a challenge before us that no country has ever yet figured out how to live with. If my true freedom depends only on actualizing self-will, how can I ever be confident that my freedom serves my neighbor and is not in direct competition with everyone around me?

Each person must wrestle with these questions for himself or herself. My only purpose here is to point out the necessity of thinking this through. I know where I stand. I hope you will stand with me. But either way, the more thought we give to these questions, the better chance we have to understand ourselves and one another.

The Federalist: Wyoming Judge Appeals To Nation’s Highest Court After Losing Job For Being A Christian

 The question Obergefell has raised across that land is: can we craft laws that permit mutually exclusive views to peacefully coexist? Or must the disfavored view be driven out of public life? 

“Does a state violate the First Amendment’s Free Exercise Clause or Free Speech Clause when it punishes a judge who has discretionary authority to solemnize marriages because she states that her religious beliefs preclude her from performing a same-sex wedding?” That’s the question Judge Ruth Neely from Pinedale, Wyoming, wants the Supreme Court to answer.

Continue reading on the Federalist.

Wyoming Judge Appeals to the Nation’s Highest Court

“Does a state violate the First Amendment’s Free Exercise Clause or Free Speech Clause when it punishes a judge who has discretionary authority to solemnize marriages because she states that her religious beliefs preclude her from performing a same-sex wedding?”

That’s the question Judge Ruth Neely, from Pinedale, wants the Supreme Court to answer.

Friday (August 4, 2017), she filed a petition with the Supreme Court of the United States (SCOTUS), asking them to review a March 7, 2017 ruling from the Wyoming Supreme Court. That ruling handed down a public censure and effectively removed her from a circuit court magistracy for answering a reporter’s question.

Each year about 10,000 such petitions are filed. Of these, only about 80 cases will be heard. But Neely’s petition already stands out above the crowd, giving her a far better chance than most.

That’s because SCOTUS does not usually take cases merely because a lower court got it wrong. They tend to take cases which fill three requirements. First, the case should be clean and uncomplicated. Second, they address important and emerging questions of constitutional law. Third, they must have nationwide and far-reaching implications. Neely’s case scores on all counts.

Cases as clean-cut as Neely’s rarely come before the Supreme Court. There is only one fact that underlies the whole case, and this is not under dispute, but freely stipulated by both sides: On a Saturday morning in early December 2014, in answer to a direct question, she told a reporter that she was unable to perform same-sex weddings because of her religious convictions.

The whole thing boils down to those words, and those words alone -- spoken outside of business hours and outside of the courtroom setting. Neely did not then, nor any time since, take any official action towards a same-sex marriage. Nor has she ever spoken again on the issue.

Over the course of the last 33 months she has turned down numerous speaking invitations and remained mute on the subject. This self-discipline now helps to make hers one  of the cleanest cases possible. There is one conversation between herself and one reporter, and nothing else to muddy the waters.

If you want to isolate the question of free speech and free expression, it cannot get any more isolated than that. Score one for Judge Neely.

As for emerging constitutional law, Neely’s case is on the cutting edge. The telephone conversation with a reporter happened more than six months before SCOTUS voided marriage law across the US with the Obergefell v. Hodges opinion, but she anticipated a question that would arise in its aftermath.

What prompted the reporter's phone call was the case of Guzzo v. Mead that brought same-sex marriage to Wyoming by vacating Wyoming Marriage statute (20-1-106). By the fall of 2014, four federal circuits had struck down marriage laws within their jurisdictions, but none had spelled out the specifics of what should replace them.

Changing marriage law is not like changing the speed limit. Speed limits are a balancing act between individual freedoms and public safety. Marriage law is about the very foundations of human existence. While there is a reasonable compromise between 60 and 70 MPH, there is no halfway ground between a sexual understanding of marriage, and an asexual understanding of marriage.

So, the question that Obergefell has raised across that land is this: can we craft laws that permit the peaceful coexistence of mutually exclusive views? Or must the disfavored view be driven out of public life altogether?

Sexual Orientation and Gender Identity (SOGI) rules, which have been pushed on the judicial ethics commissions of numerous states, have the predictable effect of driving anyone with a sexual understanding of marriage out of government service.

Judge Neely’s case is not the only one of this type. Under similar rules in Washington state, Superior Court Judge Gary Tabor was "admonished" by the Commission on Judicial Conduct for publicly announcing that he would not perform any same-sex marriages.

As part of the discipline, he effectually agreed either to perform same-sex marriages, or none at all. While this case largely slid under the radar, Neely's case has raised the issue to national attention. It is time to address this question head on.

Such gag-orders and compelled speech are driving people out of government service either directly, or by the mere threat of sanction. Should SCOTUS allow this trend to continue it would set a dangerous precedent for the future of any group with a disfavored view.

Finally, the far-reaching implications of the Neely case are hard to overstate.

The Wyoming Supreme Court, guided by SOGI theory, assumed that every Wyoming judge must, without exception, not only recognize the legality of same-sex marriages, but personally perform them. This, despite there being no written law, anywhere, which requires this.

But the Court went farther still. They next asserted that any judge who contradicts this unknown and unwritten law is, by the mere act of speaking, undermining “public confidence in the judiciary.”

If a judge can be censured and removed merely for speaking disagreement with an unwritten law, what would prevent any judge, anywhere, from being punished and removed for speech disagreeing with any actual law or constitutional provision?

Is it constitutional to remove a judge who merely speaks in favor of removing the right to keep and bear arms? Should all those judges who publicly favored same-sex marriage prior to Obergefell vacated the laws of most states, have been censured and removed? What about judges (either pro-life, or pro-abortion) who openly acknowledge that Roe v. Wade was an abomination? Shall they be purged from our courts?

These questions are not just rhetorical. They are real. Wyoming’s censure of Neely opens the door to these absurdities and many, many more. It is high time we step back from the brink. Neely’s petition gives SCOTUS an opportunity to take in the big picture.

What we do today will have far-reaching implications for the free speech of all public servants, and all citizens in general, long after same-sex marriage recedes into the footnotes.

Further Reading:
The Federalist: Wyoming Judge Appeals to Nation's Highest Court After Losing Job for Being Christian

The Sequence to Success

“First comes love, then comes marriage, then comes baby in a baby carriage.” This children’s rhyme is embedded among my earliest memories. It wasn’t taught to me at church, although I was a regular attender, and went to Sunday School to boot. It wasn’t taught to me by my parents, although my parents modeled this sequence themselves.

Rather, I distinctly remember learning this on the playground. It wasn’t particularly religious. It wasn’t meant to be preachy, or moralizing. It was just the way things were, and the way things ought to be. Call it “the world of Ozzie and Harriet,” if you want. You could even mock it, and say that ship has sailed.

In terms of cultural trends, you would be right. I was born at the tail end of the baby boom. Memories are sketchy from my early childhood, but the best I can figure, I learned this rhyme in the summer of 1968. Free love was already in the air and Woodstock was just around the corner.

A different wind was blowing. Soon, it would become a gale-force. In those years fewer than 9% of children were born out of wedlock. By the time the boomers came of age, 20% of them had children out of wedlock. Among the millennials the number rose to 33%. Today it is over 40%.

I haven’t heard this rhyme in years. Apparently, our children are not hearing it either. So what? Does it make any difference that the order of love, marriage, and baby has been upended in so many homes? Recent studies are suggesting that it does.

In 2009, a study from the Brookings Institute coined the term “success sequence.” Their study suggested that people who entered into family life by way of the specific sequence: education, job, marriage, then children, had a 98% chance of living in the middle to upper income levels.

Recently, the Institute for Family Studies released an analysis of the latest data gathered by the National Longitudinal Survey of Youth which was begun in 1997. This survey has been tracking a representative sample of around 9000 millennials born between 1980 and 1984. The Bureau of Labor and Statistics has been periodically surveying these people, since they were in their middle teens. The latest sampling checked on them when they were 28-32 years old.

What they found largely confirmed the predictions of the Brookings Institute. Across the board, 97% of these young adults who have completed the sequence of education, job, marriage, then children, have avoided falling into poverty. Of these, 51% are in the upper income bracket. By contrast, 53% of those who did not follow this sequence live below the poverty level, and only 7% are in the upper bracket.

With numbers so striking as these, you might think that they cooked the numbers, or neglected to take into account other significant variables. What about race and socio-economic background? What about sex and education, and test scores?

If you’re interested in the details, you will want to read the full report, “The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ among Young Adults.” But the bottom line is this: after all these variables are taken into account, still the sequence of education, work, marriage, then children always comes out on top as the best indicator of success.

It remains true that childhood family income influences your prospects. So also do race, sex, and educational opportunities. These are areas which we should all be concerned about addressing. But they are factors over which the people born in them have no direct control.

The good news is that three factors that any person can control, matter a great deal in overcoming the disadvantages of circumstances beyond your control. We can control whether or not we stay in school. We have agency over how diligently we seek a job and how faithfully we work in it. We, alone, determine whether we get married before having children, or have children before getting married.

According to the latest research, each of these decisions has a strong economic impact on our future. Even among those who did not follow the sequence completely, finishing high school places you at an advantage over those who don’t. Of all millennials who finished high school, only 31% are now below the poverty line.

Adding a full-time job (or continuing school, or marrying and raising the kids at home) cuts that number by half. Then, by the time you add marriage before children, your chances of avoiding poverty are 97% certain. This sequence of success holds out hope for all young people, no matter how disadvantaged they are to start with.

Even those who were raised in the lowest income bracket have an 80% chance of rising out of poverty by following the sequence. Both blacks and Hispanics also have an 84% chance of living in an upper- or middle-income bracket when they follow the “success sequence.”

Of course, economic opportunity is only one measure of success. It would be wrong to put so much emphasis on money that we neglected physical health, emotional well-being, and spiritual care. Education, work and marriage also have benefits in these areas, but we cannot explore them here.

Still, just the economic numbers alone lead to some clear conclusions.

First, there is hope. We are surrounded by doomsday prophets who preach that your future is determined by the circumstances of your birth. They are quite wrong. The way you live has a whole lot more to do with your future success than other factors that you cannot control. Your future is not determined, it is in your hands.

Second, marriage matters. If I had a dime for every time I heard someone ask, “what can a marriage license give me that I don’t already have,” I’d be lifted to the high-income bracket. Social scientists and theologians might be able to explain why marriage makes a difference, but the numbers alone prove that it does make a difference.

Don’t forget, that the poverty numbers among the millennials are not just because single mothers are disadvantaged economically. Having children out of wedlock also hurts the economic prospects of the men who father them, even if they take no responsibility for the children. How could this be if it were only about single-motherhood?

Our grandparents said that marriage tames men. Women don’t tame men, marriage does. It increases incentive for responsibility, hard work and education. It brings out the best in both men and women.

That sounds like a pretty “Ozzie and Harriet” thing to say, and it is. American culture has spent the last 50 years trying to prove them wrong. But what if they were right?